A Prominent Judge Retires, Objecting to the Governor's Litmus Test

Gov. George E. Pataki won a significant round in his ongoing battle with the judiciary last week when an influential appellate judge retired after learning that Mr. Pataki would not reappoint him because of a pattern of rulings that favor criminal defendants.

It was the first time in memory that a senior judge was to have been barred from serving an additional term because of ideology.

New York judges and lawyers, seeing the resignation against the backdrop of moves by the Governor this fall that affect the selection and reappointment of appellate judges, said it signaled a grave threat to judicial independence.

''It's an effort by the Governor to send a strong message to judges that 'They must decide the way I want them to, or I won't reappoint them,' '' said Michael A. Cardozo, president of the 21,000-member city bar association. ''I think this is a very unfortunate effort at judicial cleansing.''

The judge, Francis T. Murphy, presiding justice for 20 years of the court that hears appeals from Manhattan and the Bronx, announced last Monday that he was leaving at the end of this month. He turned 70 in April, the mandatory retirement age for presiding judges, but had been expected to be approved by Mr. Pataki for a two-year term as a regular member of the court. Senior judges routinely exercise that option.

But that same day, Justice Murphy sent a stinging letter to the chairman of a panel that screens judicial applications for the Governor.

In it, he said that a go-between had informed him that ''Gov. George Pataki has declared his intention not to reappoint me as a justice of the Appellate Division, First Judicial Department, because of ideological differences.

''Since the Governor already has made up his mind on the matter and apparently did so some months ago, even before the 'screening process' had commenced, there is no reason for me to appear'' before the panel, the judge wrote. He had been scheduled to do so this Thursday.

Protege of a once-prominent Bronx Irish Democrat machine, the wily, powerful judge is an unreconstructed liberal on criminal justice questions. He has often been the lone, dissenting voice in support of defendants' rights, and a caustic critic of prosecutors and the police.

The Governor's counsel, James M. McGuire, would not comment directly on Justice Murphy's letter, except to say that in Mr. Pataki's statements and executive orders, ''The Governor has made it clear that he is looking for people to appoint to the judiciary whose views, particularly on criminal justice matters, are consonant with his.''

The Governor's views, it can be safely said, are in diametric opposition to Justice Murphy's.

Last week, leaders of the bar strongly criticized the Governor. On Friday, the New York County Lawyers' Association, which represents 9,000 lawyers, condemned Mr. Pataki's ''reported refusal'' to reappoint Justice Murphy.

Stephen Gillers, a legal ethics expert at New York University, said that New York governors have traditionally allowed judges appointed or elected during earlier administrations to remain on the bench.

''But this politicizes the judiciary to an extent that we have not seen in New York history before,'' Mr. Gillers said. ''The political influence has been on who gets nominated for a judgeship and who gets promoted. But once you're on the bench, the political branch has had the good sense to stay out of it. Judges up for reappointment will be looking over their shoulder and worrying whether they'll offend a political interest in a specific ruling.''

Mr. Cardozo saw the Governor's move against Justice Murphy as the latest in a flurry of decisions intended to enhance and solidify his ability to handpick a more conservative, Republican appellate bench.

The Governor did establish four independent screening panels -- one for each of the state's midlevel appellate courts -- to consider applications when vacancies on those courts arise. The panels pass ''highly qualified'' names to him for a final selection.

Candidates for the appellate division must first have been elected as trial court judges. Traditionally, judgeships in Manhattan and the Bronx have been won by Democrats. And so it follows that three judges referred by the screening panel earlier this fall for two vacancies on the Manhattan-Bronx appeals court are Democrats.

The Governor asked the panel for more names to consider. It sent him a fourth.

So far, he has not chosen any of them. But in November, he issued an executive order allowing him to place candidates screened by a panel for one geographical area in vacancies in another.

Mr. Cardozo bristled, saying that a candidate approved for an appeals court overseeing Brooklyn, Queens and Nassau County might not be qualified for the Manhattan-Bronx court, which has a docket with a heavy emphasis on commercial cases.

Indeed there has been much speculation in New York's legal world that Mr. Pataki intends to appoint Justice Alfred D. Lerner of State Supreme Court to Justice Murphy's position as presiding justice. Justice Lerner, a Republican and former chief administrative judge of the Queens courts, was recommended by his local judicial screening panel for its appeals court.

But Pataki administration officials have sought to quell those rumors by pointing out that a presiding justice must be selected from among colleagues on the same court.

Forty years ago, when he was only 30, Justice Murphy, a former prosecutor and the son of a Bronx assemblyman, became a judge when Mayor Robert F. Wagner appointed him for an interim term in what was then called Municipal Court. After his election as a State Supreme Court Justice, he was appointed to the appellate division by Gov. Nelson A. Rockefeller, named its presiding justice by Gov. Hugh Carey, and reappointed by Gov. Mario M. Cuomo in 1990. In his 26 years on the appellate court, he personally heard about 25,000 cases.

In addition to weighing appeals of criminal, civil, family, and trust and estate cases, an appellate division has the power to discipline errant lawyers within its jurisdiction. With a gift for scathing locution, Justice Murphy was feared, hated and respected as a whip cracker.

He also raised hackles in decisions that overturned significant estate rulings. In 1996, Justice Murphy reduced the fee that the Manhattan Surrogate, Eve Preminger, awarded to the lawyer for the Andy Warhol estate, Edward W. Hayes, to $3.5 million from $7.2 million, and ordered him to repay $1.35 million to the Andy Warhol Foundation for the Visual Arts. Justice Murphy even scolded Surrogate Preminger for having a conflict in the case, because she had dined socially with Mr. Hayes, who had made a $200 contribution to her campaign.

Mr. Hayes, in turn, said that Justice Murphy had a conflict that he should have disclosed. The lead lawyer for the Warhol Foundation, Thomas J. Schwarz, had been counsel to a 1990 panel for Governor Cuomo that scrutinized and ultimately recommended Justice Murphy's reappointment as presiding justice.

But a 1994 ethics opinion said that when lawyers who evaluate judges subsequently appear before them representing clients, those judges do not have a conflict of interest.

The 1990 Cuomo panel had to address an earlier blot on Justice Murphy's career: an accusation that the judge had intervened in the investigation of four attorney disciplinary cases. A state judicial conduct commission dismissed those charges, but cautioned Justice Murphy about having failed to adequately supervise his subordinates.

Pataki administration officials have said that what set the Governor against Justice Murphy was not disputes over conflicts and attorney discipline, but his rulings in criminal law. Criminal appeals represent about 40 percent of the court's docket; convictions are upheld in upwards of 95 percent of the cases. But over the years, Justice Murphy's angry voice, upbraiding police officers for what he saw as illegal searches and coerced confessions, railing against prosecutors for withholding evidence from the defense, often stood in lone dissent against four other voices on judicial panels. To defense lawyers he was occasionally a hero; to prosecutors, anathema.

Although Justice Murphy had to step down as presiding justice this year, he had applied to the Governor for the first of three permissible two-year extensions, during which he could sit as a regular member of the court.

But at a charity dinner in mid-November, a friend of the judge's, Thomas B. Galligan, a retired State Supreme Court justice, bumped into James Gill, the chairman of the Governor's screening panel. According to Justice Galligan, Mr. Gill asked him to tell Justice Murphy that the Governor was disinclined to grant the two-year term because of their philosophical differences over criminal rulings. ''It's a strange way of doing business,'' remarked Justice Galligan, who delivered the message. Through an associate, Mr. Gill refused to comment.

Mr. McGuire, counsel to Mr. Pataki, would only say, ''The Governor respects the independence of the judiciary and has reappointed appellate division justices despite disagreement on criminal justice matters. But the divergence in views between Justice Murphy and the Governor on criminal justice issues is profound.''

At the Waldorf-Astoria Hotel on Thursday night, Justice Murphy served as keynote speaker for the annual dinner of the New York County Lawyers' Association. He spoke of an Irish forebear, who came here expecting justice free of influence.

''Of all who came before and after that Irishman,'' he said, ''none foresaw judges fearful of speaking out because they might lose public office, or judges so passionate for governmental favor that they would dance to any tune a distant piper played.''